Excerpt:.....section, 88, decree under - section repealed by civil procedure code, 1908--repeal, effect of, on decree--execution, law governing. - - the petition of 20th february 1914 was, however, disliked on 1st august 14, for failure to pay batter. extrusion altruism 'is, with all deference, unsafe in such cases. it would, it seems to me, be unsafe in the extreme to attempt inference from such data as to the intention of the legislature and to estimate the probability that a particular interval did or did not involve a general intention to give retrospective effect in all, or any particular classes of oases. but there is no difference where the date of the decree as well as the date fixed for payment were before the code same into force. 369 .are general and would apply equally to the right to..........acknowledgment of liability so as to attract section 19 and the payment made by him, which according to him was authorised and directed by the judgment-debtor, is within section 120 of the limitation act. i am, therefore, of opinion that there is no bar of limitation against the 4tb respondent. the decision of the lower court must, therefore, be reversed and the execution application must be restored to file and be proceeded with according to law. as regards the legal representative of the judgment-debtor, i do not think there is any question of limitation, but as no personal decree is sought against him and as he is not in possession of any of the properties included in the mortgage decree, no relief can be given against him. there will be no order as to costs in his favour or against.....

Judgment:

Oldfield, J.

1. The appellant, petitioner, obtained a decree in the form authorized by Section 88, Transfer of Property A at, on 25th September 1907, time being allowed for payment until 25th March 1908. There was an appeal to this Court which ended maturely in his favour on 23rd February 1901, no further extension of time being given, and the next proceeding was taken on 30th February 1914 by an execution petition headed as presented under Order XXI, Rule 11. In it, tale of the property was inked for and also the passing of a final Jure; and the latter relief was also or separately on 20th March 1914, became; he Court had returned the petition for the creation as to why a separate petition or Such a decree should not be filed. The petition of 20th February 1914 was, however, disliked on 1st August 14, for Failure to pay batter. On 3rd Marsh 1915, the it respondent in the lower Court reported that he had paid Rs. 8 COO towards the, alleging that ha did so in accordance with a direction given to declare it, when he purchased the mortgaged property in 1907, applied to have satisfaction entered to that extent and asked that he might have notice of any future application by face decree-holder. The present application for an order absolute and for realization of the amount due by sale was filed on 16th January 1918. The Question is whether it is in time.

2. It was presented as being so with reference Saturday to the payment of Rs. 8,000 and Section 19, Limitation Act, and I return to that contention. But the main difficulties are those with which the lower Court has dealt; and, if they are insuperable, the consequence will be that the petitioner allowed the proceedings to terminate before the application in conception with the 4th respondent's payment, and his right to continue them could not be prolonged or revived by it. Under the Transfer of Property Act, which was in force when petitioner's Built was tried and his decree was obtained, proceedings after Each decree, including the obtaining of the order absolute referred to in Section 89, would be proceedings in execution subject to Article 112, Schedule I, Limitation Act, which would be taken for 12 years, if applied. creations were made at intervals of not more than three, this being the law as enunciated in this Court's relent decision, Muhammad Husain Saib v. Abdul Karamu Saib 29 Ind. Cas. 237 on consideration of the judgments of the Judicial Committee therein referred to. If the proceedings, as petitioner contends, were throughout under the Transfer of Property Act, and in execution, there is no don that there was still an executable decree on 5th July 1915, when the fourth respondent reported his payment, because the petitioner's right to execute arose under Article 182 on 23rd February 1911, the date of the appellate decree, and was prolonged by his application on 20th February 1914 until 20th February 1917, This, however, is disputed, because on 1st January 1809, whilst the appeal was pending, Sections 88 and 89 of the Transfer of Property Act were repealed and Order XXXIV of the present Civil Procedure Code came into force. Under Rules 4 and 5 of that Order the stage of execution at which Article 182 can be applied, is reached only when a final decree has been obtained under the latter, and the limitation period for an application to obtain such a decree is, under Article 181, three years from the date on which the period allowed for payment expired. If, as the lower Court has held, the Code procedure became applicable to the ease, the three years were exhausted on 25th March 1St, since no period for payment as fixed in the appellate decree ever came or could come into existence.

3. Some arguments were addressed to us for respondents to show that the original decree was superseded by the decree in the appeal, the assumption being that, as the latter was passed after the repeal of the Transfer Property Act, it must be regarded as having bean passed under the Civil Procedure Code and as subject to the Order XAXLV procedure and the application of Article 181, I do not enter on those considerations, because that assumption seems to me unsound, the correct principle being that as a right had already been acquired by the petitioner under the repealed Act and more than mere procedure was in question, he was entitled to a continuance of the proceedings, both in appeal and execution, as though the repealing Act had not been passed. That such a right had been acquire on 25th March 1608, when the period for payment elapsed, in the shape of competence to proceed immediately in execution, instead of doing so only after the final decree necessary under the Code had been obtained. is, I think, clear with reference to Muhammad Hussein Sail v. Abdul Karim suib 29 Ind. Cas. 237 , already referred to, and the suggestion made to us that petitioner in any degree compromised his right or submitted to a denial of it by his abortive request for a final decree, when the Court, as already stated, returned his application on 20th February 1914, must be rejected. For, no estoppels could arise from conduit, on which his opponent did not change his position, and no rejudicator as to the endowment, under which the proceedings were taking place, when the Court gave no judicial decision, and it is not clear that in it its implied suggestion or petitioner in his compliance therewith drew any distinction between a final decree and an order absolute.

4. The principle above referred to was stated in a decision to which I was a party, Truma Lalsami Naidu v. Subramaniam chettiar 45 Ind. Cas. 109, with reference to Section 6, Act X of 1397, and cohnial Sugar Befining of v. Irving 17 O.C 343 , and it has not been shown that it is on any ground inapplicable to the facts before us It is the basis of the judgments in Kontilla v. Ishri Singh 6 Ind. Cas. 188 and in Krishna Bar v. Ranamoyi Debi 29 Ind. Cas. 120 , which was followed by this conrt in Singaravelu PilLal v. Santhana Krishna Mudaliar 31 Ind. Cas. 9 , that decision again being followed in Natesayati v. Annaami Udayan 34 Ind. Cas. 756 , although Bisseshur Sanamat v. Jasoda Lal Ckowdhury 19 Ind. Cas. 391 , relied on here by respondents, was cited, In the last mentioned case Jenkins, C.J., doubted the correctness of Konsilla v. Ishri Singh 6 Ind. Cas. 188 and held, no doubt in connection with Section 48 but without qualification expressed, that the Code of 1908 came into force subject to no general saving of existing rights with reference to the express provision for the saving of existing rights of appeal, the interval between the date of its enactment and that fixed by Section 1 for its operation, and the admission of the party's Vakil that he was applying under it. The last ground of decision is not available in the present ease, and with all respect the adequacy of the others may be doubted. To deal with them generally, it is a fundamental rule, when vested rights are, an here in question, that no Statute shall be construed, so as to have a retrospective operation, unless each a construction is required plainly by its language, Maxwell on Interpretation of Statutes, 3rd Edition, pages 298-299; and it is not possible to hold that the mere implications relied on fulfill this requirement. No doubt there is in Section 154 an express saving of pending rights of appeal. But the application of the maim Exprenio units est. extrusion altruism ' is, with all deference, unsafe in such cases. Mollwo, March a& Co, v. Court of Wards (1872) 4 P.C. 419 and Shrewsbury v. Scott 1859 E.R. 350 . And as regards the second consideration, above referred to, it has not been shown that the postponement of the operation of a Statute has been recognised by any course of authority as relevant in this concoction. It would, it seems to me, be unsafe in the extreme to attempt inference from such data as to the intention of the Legislature and to estimate the probability that a particular interval did or did not involve a general intention to give retrospective effect in all, or any particular classes of oases. For in a case such as that before us, the six months allowed, even if it were not, as, it probably would be, reduced to four by the intervention of the vacation, might easily be too little for the completion of contested sale proceedings; and it is useless to reply that six months would afford reasonable time for all that would be necessary for the making of an application; because, no execution being possible after the date of the change in the law, it would be necessary that She proceeding should be completed, rot merely initiated, before that date arrived. It is not possible to assume that the Legislature had in mind the practical difficulties and local consideration, which would arise. I would, therefore, follow the general rule above referred to and the coerce of authority in this Court, and hold that the proceedings throughout were regulated by the Transfer of Property Act, and that the petitioner was entitled to execution until 20th February 1917, and, therefore, on 23rd August 1915 when the application by the 4th respondent next relied en was made. The purport of that application has already been given The lower Courts no doubt have not referred to it. But on the view they took it was not necessary for them to do BO, and it was relied on unambiguously by petitioner as a starting point for limitation in his petition. In paragraphs 1, 2 and 4 of the application the suit properties are referred to as bound by the decree and 4th respondent's indebtedness aid liability to the execution are acknowledged. It is not suggested that any fact can be proved to mitigate the effect of these statements, and there is, therefore, no reason for refusing at once to apply Section 19 of the Limitation Act.

5. The decision of the lower Court must, therefore, be set aside and the petition must be remanded for re-admission by the Subordinate Judge and disposed of on its merits, the appeal being allowed. Costs as between 4th respondent and petitioner to date here and in the lower Court will follow the result and be provided for in the order to be passed. As between the legal representative of the judgment' debtor and appellant there will be no order as to costs.

Seshagiri Aiyar, J.

6. The decree under execution was passed on the 25th September 1907. The six months time fixed for payment expired on the 25th March 1908. An appeal was preferred against the decree; it was dismissed on the 23rd February 1911, van application for execution was made lo the Court of first instance on the 20th February 1914, which clamed, among other relief's, the passing of a final decree. That Court returned the papers to the applicant, as it wanted information whether a final decree had been passed and if not, under what provision of law the applicant was entitled to apply for execution. A month later the application was re-presented along with an independent application for a final decree. Both the applications were rejected en the 1st August 1914, because certain formalities were not complied with. On 3rd March 1915, the present 4th respondent, who purchased the equity of redemption during the pendency of the suit, paid a sum of Rs. 8,000 towards the decree. He applied in August 1915 for satisfaction being entered pro ten to and in that application stated that under his sale deed, he was directed to pay the decree amount. Satisfaction was recorded on the 23rd August 1915. The present application for execution was made on the 16th January 1918.

6. The Subordinate Judge held that it was barred by limitation. Hence this appeal

7. Mr. Venkatarama Sastriar for the Appellant contended that to the decree under execution, the provisions of Order XXXIV of the Civil Procedure Code have no application. There is come difference of opinion in this Court, when the decree is passed under the Transfer of Property Act, but the time fixed for payment accrues after the Civil Procedure Code had some into force, whether the procedure provided by the Act or the one provided by the Code should be followed. But there is no difference where the date of the decree as well as the date fixed for payment were before the Code same into force. Mr. Muthiah Mudaliar, for the Respondent, relied upon Bisseshur Sanamat v. Jasoda Lal Chowdhury 19 Ind. Cas. 391 for the view that if execution is started after the code, the Act has no application. Although that decision has not fens followed by Old field and Sadasiva Aiyar, J.J., in Natesa Vdayan v. Annasami Udayan 34 Ind. Cas. 756 still, having regard to the high authority of Sir Lawrenae Jenkins, I shall examine it once again.

8. In that case, the question was whether the limitation provided by Section 48 of the Civil Procedure Code governs decrees passed under the Transfer of Property Act. The learned Chief Justice first pointed out that, as the application under the Act has be earth dismissed, the application after the Code cannot be regarded as a continuation of the previous application. Then he proceeded to consider whether the limitation referred to in Section 48 was in applicable to the decree. He referred to the concession made before him that the application was under the Code. On that concession, he held that it was not permissible to a suitor applying under the Code to get round Section 48. If I may Cray so with respect, I entirely accept this view. Some reasons have been given for the eon elusion, which I see no necessity for sanya sing. That conclusion in no way supports the proposition suggested by the learned Vakil for the respondent. The leisured Chief Justine did not, as I understand his, say that there cannot be a vested right to apply under a repealed law, as there is for filing a suit or for preferring an appeal. The observation of Lord Maanaghten in Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 . are general and would apply equally to the right to apply as well as to the right to appeal. In Tiruma Lalsami Naidu v. Subramaniam chettiar 45 Ind. Cas. 109 it was held by this Court that a right of suit wag preserved notwithstanding a change in the law. In Krishna Bar v. Enemy Debi 20 Ind. Cas. 120 which was decided after Bisseihur Sanamat v. Jasoda Lal chowdhury19 Ind. Cas. 391 , it was held that a vested right to apply was not taken away by the passing of a new Act.

9. In my opinion, therefore, the view taken in Madras, that the right to apply in a particular manner which the party possessed under the Transfer of Property Act is not taken away by the mere fast that the decree is put into execution after the code had pimiento force, is correct. Mr. Muthiah Musaliar suggested another distinction, namely, that if the very first attempt to execute the decree is made under the code, then it is the code which regulates the procedure and not the Act; and he argued that all the Madras decisions, namely, Muhimmad Rusain Saib v. Abdul Karim Saib 29 Ind. Cas. 237, Natesa Udayan v. Annasami Vdayan 34 Ind. Cas. 756 , Singaravelu PilLal v. Sanihana Krishna Mudaliar 31 Ind. Cas. 9 , excepting Subba lakthirni Ammal v. Ramalinga chetty 48 Ind. Cas. 298 , were not opposed to this contention. I fail to see on what principle such differentiation can be made. The real question is whether the decree, which was executable without obtaining a final decree under the Act, changes, its character when the code comes into force; and whether as a result of it, parties are compelled to regard an executable decree as a preliminary decree. In my opinion such a conclusion is not warranted by Order XXV of the Code. I shall no sir proceed to discuss the other questions.

10. The next question which was argued with great insistence on both sides was whether it is the date of the appellate decree or that of the decree of the first Court that should be taken into astound in deciding whether the Act governs the application or the Code. There are authorities for both the contentions, but having regard to the recent decision of the Judicial Committee in Hukum chand Boid v. Pirtki chand Lal 50 Ind.Cas. 444: (1919) M.W.N. 258 I do not think that the earlier decisions need be discussed very fully. In that case, there was a considered pronouncement by the Privy Council. I do not agree in the least with the suggestion of Mr. Muthiah Mudaliar that it was an obiter dictum. In the early portion, their Lordships say definitely that, although it is open to question whether Article 97 of the Limitation Act is applicable, they would decide the case on the assumption that it was that Article that governed the case. In the argument of Counsel, the question was distantly raised whether the right to refund arose on the passing of the decree of the Court of first instance or on the passing of the decree of the Appellate Court, Their Lordships point out, whatever may be the view under other systems of law, in India a decree, notwithstanding that there is an appeal, is enforceable; and it may be that a large number of Indian eases will have to be reconsidered in the light of this judgment; but there can be no daub that we cannot disregard the decision as an obiter dictum. Moreover, if we turn to Order XX, Rule 11, of the Civil Procedure Code, it is clear that the decree of the Court to be executed is the decree of the Court of first instance, Clause (c) speaks of the date of the decree. Clause id refers to the question whether any appeal has been preferred from the decree. These the clauses suggest that the decree under execution is the decree of the Court of first instance.

11. Similarly Article 182 of the Limitation Act, by the language of Clause (2), impliedly suggests that it is the decree of the first Court that is really put into execution, although the starting point for limitation will be the date of the appellate decree, I am, therefore, of opinion that on the language of these two Acts and on the judgment of the Judicial Committee, the excitability of a decree is to be judged with reference to the first Court's decree, and not with reference to the decree of the Appellate Court, It follows, therefore, that it is the law which was in force when the first Court's decree was passed that governs its excitability.

12. I shall now refer to a few of the eases relied on for the contrary view. Abdul Majid v. Jawahir Lal 23 Ind. Cas. 649 : 19 C.L.J. 626 , which is a judgment of the Privy Council, does not affect this question. There the appeal to the Privy Council was withdrawn without further prosecution. Their Lordships held that on this withdrawal no 'order of the Council' was passed which would attract Article 183 of the Limitation Act, The inference sought to be drawn from this judgment is wholly beside the point. Batuk Nath v. Munni Dei 23 Ind. Cas. 644: 16 Bom. L.R. 360 is another decision to the same effect. cholappi Gathinna Sdnna v. Ramchandra Anna Pai 53 Ind. Cas. 550 : 13 L.W. 82 (P.C), which enunciates that the liability of the surety can be enforced within three years of the passing of the appellate decree, is in accordance with the view taken by the Judicial Committee in Bighubur Singh v. Jai Indra Bahadur Singh 53 Ind. Cas. 550 : 38 M.L.J. 302 : 13 L.W. 82 (P.C) that the liability of the surety extends to the passing of the final decree in the suit for which he stood surety. Sheosagar Singh v. Sitaram Singh 24 C. 616 (P.C.) related to the question whether the finding of a lower Court not poured in by the Appellate Court will operate as res judicator. It was pointed out that for the purpose of ret judicata, the finding of the first Court must be deemed to have been superseded by the finding of the Appellate Court. I fail to see how this affects the present question. The same observations apply to Abdullah Asher Ali Khan v. Ganesh Dass 42 Ind. Cas. 959.15 A.L.J. 889 . The decisions of this C jurt in Kritinarna chariar v Mangamil 26 M. 91, in Manamkraman v. Unniappan 15 M. 170 and in Arayil Kali Amma v. Sankaran Nambudripad 5 Ind. Cas. 420 do not directly deal with the point we have to decide. Some of them may have to be reconsidered in the light of Hukum chind Boid v. tirthio hcnilial 50 Ind. Cas. 444 : 21 Bom. L.R. 632, The Article applicable to the present ease is, therefore, Article 182, and not Article 181.

13. Mr. Muthiah Mudaliar next contended that the application is barred by limitation, even if Article 182 applied. His argument was that as the last application prior to the present one was made on the 28th February 1914, the present one, made three years after, was barred by limitation. The answer to this is that under Article 182, Clause (2), of the Limitation Act, the starting point for limitation is the date of the appellate decree, namely, the 23rd February 1911 and that, therefore, the first application was in time.

14. It was next contended that as the 4th respondent was not a party to the suit or appeal, the application against him was barred. He purchased pendent late and it is well settled that anything done against the party on record will affect such a purchaser. The principle of Velayudam lilLal v. Vaitlualirguni Pillai 17 Ind. Cas. 619 governs this case. Moreover, in his application the 4th respondent distinctly stated that he was authorized to pay the debt. Under Section 146 of the Civil Procedure Code any proceeding commenced against the party an continued again the person who claims under that party. In Sitaramaiwamy v. Bulla Lakshmi Narasamma 48 Ind.Cas. 840 , this provision was applied in favour of a mortgagee under the original party to the quit. In my opinion a purchaser pendent late is affected by the proceedings commenced against (he party on record. See also Rradshaw Widdrington (1902) 2 Ch. 430 and Lacey, In re, Howard v. Lightfoot (1907) 1 Ch. 330 .

15. It was next argued that as between the 20th February 1914 and the 16th January 1918 there were no proceeding's taken by the decree holder, the application was barred by limitation. As was stated in the opening', there was an application to record satisfaction by the 4th respondent. In Jotindra Kumar Das v. Gag in chandra Pal 45 Ind. Cas. 903 it was held that payment by a judgment debtor will be regarded as a step-in-aid of execution. See also Bacharaj Nyahalchand v. Babaji Tukaram 21 Ind. Cas. 407. Apart from these authorities I am dear that the payment by the 4th respondent comes within both Section 19 and Section 10 of the Limitation Act, vide Pamulapati Venkotalmshniah v. Ecninmudi Subbarayudu 36 Ind. Cas. 240 . and Dome Lal Sahu v. Boihm Dobay 33 C. 1278. The application for entering up satisfaction contains an acknowledgment of liability so as to attract Section 19 and the payment made by him, which according to him was authorised and directed by the judgment-debtor, is within Section 120 of the Limitation Act. I am, therefore, of opinion that there is no bar of limitation against the 4tb respondent. The decision of the lower Court must, therefore, be reversed and the execution application must be restored to file and be proceeded with according to law. As regards the legal representative of the judgment-debtor, I do not think there is any question of limitation, but as no personal decree is sought against him and as he is not in possession of any of the properties included in the mortgage decree, no relief can be given against him. There will be no order as to costs in his favour or against him.